"A want of uniformity in price for the same kind of service under like circumstances is most unreasonable and unjust, when the right to demand it is common. It would be strange if, when the object of the employment is the public benefit, and the law allows no discrimination as to individual customers, but requires all to be accommodated alike as individuals, and for a reasonable rate, that by the indirect means of unequal prices some could lawfully get the advantage of the accommodation and others not. A direct refusal to carry for a reasonable rate would involve the carrier in damages, and a refusal, in effect, could be accomplished by unfair and unequal charges, or if not to that extent, the public right to the convenience and usefulness of the means of carriage could be greatly impaired. Besides, the injury is not only to the individual affected, but it reaches out, disturbing trade most seriously. Competition in trade is encouraged by the law, and to allow any one to use means established and intended for the public good, to promote unfair advantages amongst the people and foster monopolies, is against public policy, and should not be permitted."

"3

3 The language in the following cases is especially strong against personal discrimination:

United States-Menacho v. Ward, 27 Fed. 529, B. & W. 372 (1886): Samuels v. Louisville & N. R. R., 31 Fed. 57 (1887).

Alabama-Mobile & Bienville Water S. Co., 130 Ala. 379, 30 So. 445, B. & W. 417 (1901).

Illinois-Chicago & A. R. R. v. People, 67 Ill. 16, 16 Am. Rep. 599

(1873).

New Jersey-Messenger v. Pennsylvania R. R., 7 Vroom (36 N. J. L.), 407, 13 Am. Rep. 457, 8 Vroom (37 N. J. L.), 531, B. & W. 357 (1874). North Carolina-Griffin v. Goldsboro Water Co., 112 N. C. 206, 30 S. E. 319, 41 L. R. A. 240, B. & W. 403 (1898).

Ohio-Scofield v. Lake Shore & M. S. R. R., 43 Ohio St. 571, 3 N. E. 907, 54 Am. Rep. 846 (1885).

Vermont-Fitzgerald v. Grand Trunk Ry., 63 Vt. 169, 22 Atl. 76, 13 L. R. A. 70 (1891).

726. Discriminations foster monopolies.

The other leading case against personal discrimination is Schofield v. Lake Shore & Michigan Southern Railway Company. In that case it appeared that the railway company, having tariff rates for the public generally, contracted with the Standard Oil Company that, in consideration of said company giving to the railway its entire freight business in the products of petroleum, they would transport such freight for the company at certain rates, about ten cents per barrel cheaper than for any other customers whatsoever. Plaintiffs, one Schofield and others, being also engaged in the manufacture and also dealers in refined and other products of petroleum, offered their products to the railway company for shipment on the same terms granted to the Standard Oil Company, and, on being refused shipment on the terms, brought their bill to enjoin the railway company from charging and collecting from them, for freight on said line, rates and amounts in excess of those charged to the Standard Company for like goods to the same points, or from discriminating against them in favor of the Standard Company. The prayer of the bill was granted in an elaborate opinion, the tenor of which may be judged from the following paragraph: "The district court, in their finding 10 1-2, state that shipment by the carload was the manner in which nearly all the business was done. That on the request of either party to furnish cars, the defendant had them switched to the refineries, and after being loaded were switched back and placed on the defendant's tracks for shipment on its own road. The manner of making shipments for plaintiffs and for the Standard Oil Company was precisely the same, and the only thing to distinguish the business of the one from the other was the aggregate yearly amounts of freight shipped. We adopt the reasoning of Baxter, J., as the better law, and hold that a discrimination in the rate of freights resting exclusively on such a basis ought not to be sustained.

4 43 Ohio St. 571, 3 N. E. 907, 54 Am. Rep. 846 (1885).

The principle is opposed to a sound public policy. It would build and foster monopolies, add largely to the accumulated power of capital and money, and drive out all enterprise not backed by overshadowing wealth. With the doctrine as contended for by the defendant, recognized and enforced by the courts, what will prevent the great grain interests of the northwest, or the coal and iron interests of Pennsylvania, or any of the great commercial interests of the country, bound together by the power and influence of aggregate wealth, and in league with the railroads of the land, driving to the wall all private enterprises struggling for existence, and with an iron hand thrusting back all but themselves?" 5

§ 727. Rule forbidding discrimination goes beyond rule requiring reasonable rates.

It is submitted that for the reasons advanced in these last two cases, if for no other reasons, it is a necessary part of the common law governing common carriers that they must not discriminate between shippers; and it must be plain that this involves the recognition of a rule forbidding discrimination which goes beyond the prior rule requiring reasonable charges. It was not

5 This point that discriminations foster monopolies was especially emphasized in:

United States-Samuels v. Louisville & N. R. R., 31 Fed. 57 (1887). Maine-New England Exp. Co. v. Maine C. R. R., 57 Me. 188, 2 Am. Rep. 31 (1869).

New Hampshire-McDuffee v. Portland & R. R. R., 52 N. H. 430, 13 Am. Rep. 72, B. & W. 149 (1873).

New Jersey-Messenger v. Pennsylvania R. R., 7 Vroom (36 N. J. L.), 407, 13 Am. Rep. 457, Vroom (37 N. J. L.), 531, 18 Am. Rep. 754, B.

& W. 357 (1874).

Ohio-Scofield v. Lake Shore & M. S. R. R., 43 Ohio St. 571, 3 N. -E. 907, 54 Am. Rep. 846 (1885).

Pennsylvania-Sandford v. Catawissa, W. & E. R. R., 24 Pa. St. 378, 64 Am. Dec. 667 (1855).

Vermont-Fitzgerald v. Grand Trunk Ry., 63 Vt. 169, 22 Atl. 76, 13 L. R. A. 70 (1891).

easy to work this out logically, since it did involve a development in the law governing public service. How cautious many courts were in working the new rule out may be seen by an extract from the opinion of Judge Bruce in Samuels v. Louisville and Nashville Railroad Company, where the court sustained on demurrer a complaint which stated discrimination, but did not allege unreasonable charge: "But the question in this case is to be determined upon the common law, and in the light of those principles as applied to railroad companies. In a case like the. one at bar, can there be a reasonable charge which is not at the same time a substantially equal charge? And is not a charge unreasonable when it is unequal, and in breach of the obligation and duty of the common carrier to the public?" 8

§ 728. Public injury by discriminations in freight rates.

The argument from policy against discrimination is so plain to any one who has not been out of touch with the recent developments in the industrial situation that it is hardly necessary to elaborate it. But a succinct statement from a recent decision by Judge Grosscup, where he held that under its general chancery jurisdiction, a court of equity has power to remedy wrongs consisting of the violation by a carrier of the provisions of the interstate commerce law prohibiting discrimination between shippers, brings out well the necessity for the protection of the whole public in having the benefits of an open market. "The bill avers—and this hearing is upon demurrer and motion for an injunction-that such discrimination was practiced in the transportation of grains and of packing house goods; and that in the transportation of grain it had gone so far that each railroad

631 Fed. 57 (1887).

8 The cases holding that the rule against discrimination in rates goes beyond the rule requiring reasonableness in rates are collected in the footnotes to § 724, supra.

9 United States v. Michigan Central R. R., 122 Fed. 544 (1903).

reaching into the grain districts had eliminated all competitive dealers, leaving only a single favored dealer who purchased all the grain at all the stations along the lines of the roads. Of course under such conditions, the grain grower was deprived of the benefit of competition among dealers. The practical effect was the same as if the railroads had established agencies of their own to purchase the grain, and by giving these discriminatory advantages, had excluded all other grain purchasers from the field. Such a policy necessarily destroys the competition to which the grain growers in a given district are entitled. Discrimination of this character is, of course, contrary to the plain provisions of the interstate commerce act."

§ 729. Public wrong in giving free passes to passengers.

These general principles against personal discrimination should, of course, apply to transportation of passengers as well as to transportation of goods. Dissimilarity of circumstances will justify differences in passenger rates as well as differences in freight rates, but outright discrimination between passengers asking the same service under the same conditions is as odious as personal discrimination between shippers who ask the same service. To quote the language of Commissioner Knapp in Harvey v. Louisville and Nashville Railroad Company:10 "The fundamental and pervading purpose of the law is equality of treatment. It assumes that the railroads are engaged in a public service, and requires that service to be impartially rendered. It asserts the right of every citizen to use the agencies which the carrier provides on equal terms with all his fellows, and finds an invasion of that right in every unauthorized exemption from charges commonly imposed. No form of favoritism and no species of partiality seems more odious or indefensible than that which accords to personal influence or public station privileges not enjoyed by the community at large. The free carriage of

105 I. C. C. Rep. 153 (1892).